SCOTUS skeptical of anti-George W. Bush protesters

The Supreme Court gave a chilly reception Wednesday to a lawsuit filed by protesters who claim their First Amendment rights were violated in 2004 when the Secret Service forced them to move away from an Oregon hotel where President George W. Bush was dining.

The anti-Bush demonstrators allege that they were deliberately moved further from the president than a pro-Bush crowd also on the scene that day, winding up in a location out of sight or view of Bush and his companions.

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Many of the justices seemed reluctant to second-guess the actions of the security personnel or to allow litigation that would burden the Secret Service. But a few of the justices expressed concern about establishing a rule that would allow those guarding the president to essentially evade legal review of their handling of protesters, even where it was evident or admitted that the viewpoint of the demonstrators resulted in them being treated less favorably.

The case put the Obama administration in some awkward positions, pitting the White House’s claims to respect dissent and free speech against the Secret Service’s interest in avoiding litigation over tactical decisions made by agents in the field.

After Justice Department lawyer Ian Gershengorn seemed reluctant to say the Secret Service could legally ignore First Amendment concerns as long as agents had some legitimate security reason for taking a given action, Justice Antonin Scalia said he suspected the administration was deliberately soft-pedaling its arguments in the case.

"I really don’t understand what the government is doing here. It seems to me you want to win this case, but not too big,” Scalia said. “It would be in [the Secret Service’s] interest to say, oh, this is just like a traffic stop. It doesn’t matter whether we had a — a bad motive so long as there was an objective reason.”

Among the justices who spoke publicly during Wednesday’s arguments, Chief Justice John Roberts seemed the most deferential to the Secret Service and most troubled by the idea that agents would have to face legal process in disputes over their actions.

Roberts worried that allowing such suits could result in the Secret Service having to divulge some of its most sensitive procedures for protecting the president.

"I can see the Secret Service saying, well, that’s kind of a bad thing to make it public because there are people out there who want to kill the president, and if you go through your discovery and say, this is how we look at that situation, this is what we do, that gives people a guideline for how to break through the security arrangements,” he said.

Gershengorn did his best to fuel Roberts’s concerns.

"The discovery that my colleague has suggested he would seek is exactly the nightmare scenario that the Secret Service fears,” the Justice Department lawyer said.

However, Justice Stephen Breyer said there was also a risk in declaring that the Secret Service is essentially above the law.

“I know everyone understands the importance of guarding the president in this country. Everyone understands the danger. You can’t run a risk,” Breyer said. “At the same time, no one wants a Praetorian Guard that is above the law, and we have examples of history of what happens when you do that. So everyone is looking for some kind of line that permits the protection, but denies the Praetorian Guard.”

One bright point for the suing protesters was an indication from Justice Anthony Kennedy that he had qualms about declaring that Secret Service agents have no obligation to respect the First Amendment.

Kennedy asked Gershengorn what he would tell the Secret Service if agents there asked: “Do we have any duties under the First Amendment when we are protecting the president?”

Gershengorn said the Secret Service has a policy against discriminating between protesters based on their views, but that didn’t mean those demonstrators could sue for damages as those in Oregon did.